Opposing Carolyn Kuhl's Confirmation

Throughout her legal career, Carolyn Kuhl has followed a legal philosophy harmful to the rights and interests of ordinary Americans. This is particularly true in three areas: women’s rights and reproductive freedom, other civil rights, and access to justice.

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Executive Summary

The nomination of Los Angeles Superior Court Judge Carolyn Kuhl to the United States Court of Appeals for the Ninth Circuit has generated significant opposition. Throughout her legal career — as a lawyer in the Reagan Administration Justice Department, in private practice, and as a state judge — Kuhl has followed a legal philosophy harmful to the rights and interests of ordinary Americans. This is particularly true in three areas: women’s rights and reproductive freedom, other civil rights, and access to justice.

For example, Kuhl personally and aggressively pressed for the overturning of Roe v. Wade. She was one of the architects of the Reagan Administration’s shameful attempt to reverse long-standing IRS policy that denied tax-exempt status to Bob Jones University and other private schools that practice race discrimination. Both of these extreme positions, as well as several others advocated by Kuhl, were firmly rejected by the Supreme Court. And as a state trial court judge, Kuhl has been unanimously reversed by the California Court of Appeal for a number of rulings harmful to the legal rights of individuals. Kuhl’s confirmation to the Ninth Circuit should be rejected.

Carolyn Kuhl's Record in the Reagan Administration

Kuhl’s record on women’s rights, including reproductive freedom

Trying to overturn Roe v. Wade: Kuhl was co-author of “[t]he most aggressive memo” to the Solicitor General from within the Justice Department urging the Department to file an amicus curiae brief in the Supreme Court in the Thornburgh case calling for “outright reversal of Roe.” Kuhl then co-authored precisely such a brief, but the Supreme Court rejected Kuhl’s attack on Roe.

Seeking to limit sexual harassment protections: Kuhl was co-author of an amicus brief on the side of the employer in the Meritor sexual harassment case. The Supreme Court unanimously rejected the position advocated by Kuhl, which would have made it more difficult for women to prove sexual harassment in the workplace.

Supporting limits on family planning aid: Kuhl defended Administration rules that sought to breach confidentiality and require family planning clinics getting federal funds to notify parents of adolescents seeking contraception assistance. In the Planned Parenthood v. Heckler case, an appellate court rejected her argument and held that the rules violated the law as passed by Congress.

Kuhl’s record on other civil rights issues, including promoting tax-exempt status for Bob Jones University

Crusading for a tax exemption for Bob Jones University: Kuhl was identified as one of a “band of young zealots” who were the architects of the Reagan Administration’s decision to reverse long-standing policy that denied tax-exempt status to Bob Jones University and other racially discriminatory private schools. This radical reversal of civil rights policy championed by Kuhl ignited a firestorm of criticism and was repudiated by the Supreme Court in an 8-1 ruling in the Bob Jones case.

Trying to restrict discrimination remedies and end affirmative action: Kuhl was part of the Administration’s effort to restrict court-ordered remedies for employment discrimination. She co-authored a brief in the Sheet Metal Workers case advocating the extreme theory that relief in such cases can be granted only to identifiable victims of discrimination, even when discrimination is intentional and long-standing, barring affirmative action. The Supreme Court again rejected Kuhl’s argument.

Kuhl’s record on access to justice

Seeking to curtail citizens’ access to the courts: In the words of a high-ranking Administration official, Kuhl “launched a frontal attack” on the important principle that organizations like the NAACP, the Sierra Club, and the Christian Coalition can file lawsuits on behalf of their members. Kuhl’s effort was opposed even by the Chamber of Commerce and the AMA, and was rejected without dissent by the Supreme Court in the Brock case.

Testifying against legislation to promote access to justice: Kuhl testified in Congress against proposals to allow veterans to go to court when denied veterans’ benefits and other access to justice legislation. She criticized the veterans’ rights proposal, claiming that the “federal courts are not the enchanted land where all wrongs will be made right.” Congress nonetheless later passed a law signed by President Reagan providing for judicial review.

Carolyn Kuhl's Post-Reagan Administration Record

Kuhl’s record after leaving the Reagan Administration has continued to reflect legal views that are out of the mainstream on important issues, including women’s rights, other aspects of civil rights, and access to justice.

Kuhl’s record on women’s rights, including privacy, bodily integrity, and reproductive freedom

Dismissing claim of egregious privacy violation: As a state court judge, Kuhl threw out of court an invasion of privacy suit brought by a woman with breast cancer whose doctor had brought a drug company salesman into the examining room where he witnessed an intimate examination of her. The California Court of Appeal unanimously reversed Judge Kuhl’s decision in the Sanchez-Scott case, holding that Kuhl was wrong on the law, that the woman had a well-established expectation of privacy, and that her complaint had alleged “highly offensive conduct.”

Dismissing rape victim’s claim: Kuhl wrote a 2-1 decision in the Julie R. case against a woman who had been raped by a man who trapped her in a car by parking it against a fence so she could not get out. Despite a vigorous dissent explaining that the car was used “as a cage to prevent the victim from escaping, thus enabling the motorist to commit the act of rape,” Kuhl ruled that the injury did not result from the “use of” the car and so the victim’s insurance company did not have to cover any damages.

Continuing her anti-reproductive choice advocacy: In private practice, Kuhl filed an amicus curiae brief in Rust v. Sullivan on behalf of an anti-choice group in support of the federal “gag rule” that prohibited family clinics getting federal funds from discussing abortion with patients. Kuhl’s brief attacked the Court’s decisions upholding a woman’s right to choose abortion as causing a “major distortion in the Court’s constitutional jurisprudence.”

Arguing in favor of sex discrimination in education: As a private lawyer, Kuhl filed an amicus curiae brief in the VMI case supporting efforts by the Virginia Military Institute, a public all-male college, to continue to exclude women. Several years later, the Supreme Court rejected that position and ruled that VMI’s exclusion of women was unconstitutional.

Kuhl’s record on other civil rights issues

Several articles by Kuhl on employment discrimination and related subjects raise troubling concerns. In one, she specifically opposed affirmative action as a “divisive societal manipulation” and appeared to criticize the Court’s decision against the position she had advocated in the Sheet Metal Workers case. In the other article, Kuhl disapproved of the erosion of the “employment at will” doctrine under which employers can fire workers for any reason. She also appeared critical of the effects of laws prohibiting racial, gender, and other discrimination, appearing to lament the fact that “[e]mployers must act toward employees in the protected classes in such a way that they can explain the fairness of their actions.”

Kuhl’s record on access to justice, whistleblowers, and related issues

Trying to limit protection for whistleblowers: In a unanimous ruling strongly critical of Judge Kuhl in the Liu case, the California Court of Appeal reversed her ruling that prevented a whistleblower from getting money relief under California’s anti-SLAPP law, explaining that Kuhl’s decision was an improper “nullification of an important part of California’s anti-SLAPP legislation.” In the Songco case, Kuhl reduced by more than $4 million the punitive damages awarded by a jury to a whistleblower who had been illegally fired.

Improperly ruling against citizens’ suits: In another unanimous ruling by the California Court of Appeal reversing Judge Kuhl, the court overturned her order in the Truitt case that harmed the ability of an injured railroad worker to pursue a damage claim against the railroad by prohibiting him from using a written statement obtained from a key witness in the case. The court also unanimously reversed her decision in the Laird case dismissing a defamation claim against a Hollywood producer.

Seeking to invalidate qui tam access to the courts to combat fraud: In private practice, Kuhl urged the federal courts to strike down the qui tam provisions of federal law that allow private citizens to file suit to combat fraud against the government. The federal courts rejected such arguments and upheld the law.

Far from demonstrating a record of commitment to “protecting the rights of ordinary Americans” and to “the progress made on civil rights, women’s rights and individual liberties,” criteria suggested by more than 200 law professors for evaluating federal judicial nominees, Carolyn Kuhl has tried to turn back the clock on these crucial matters throughout her legal career. Her confirmation to an important lifetime position on the federal court of appeals should be rejected.